Search form

Ninth Circuit Turns First Amendment Inside Out

Hide your American flag, shut your mouth, and go home.

On May 5, 2010, Live Oak High School in Morgan Hill California celebrated Cinco de Mayo supposedly a Mexican holiday. That day five Live Oak students wore T-shirts bearing imagery of the American flag. School officials told the students they had to turn their shirts inside out, otherwise they would send the students home, which they did. Last week the Ninth Circuit Court of Appeals upheld that action, a ruling with profound implications for freedom of speech.

In 2010 the students’ parents duly sued the district charging violation of First Amendment rights and discrimination. The school took no action against those who wore imagery of the Mexican flag. In 2011, Chief U.S. District Judge James Ware, an appointee of George H.W. Bush, sided against the students and their parents, and for the school. Ware ruled that school students have the right to engage in non-disruptive free speech, but that “does not require that school officials wait until disruption occurs before they act.” Now the Ninth Circuit has sided against the students and for the school.

Judge M. Margaret McKeown, an appointee of Bill Clinton, wrote that past events, presumably disturbances at previous Cinco de Mayo celebrations, “made it reasonable for school officials to proceed as though the threat of potentially violent disturbance was real.”

One of the five students sent home was Daniel Galli. After the ruling, his father Kendall Jones told reporters, “This is the United States of America. The idea that it’s offensive to wear patriotic clothing, regardless of what day it is, is unconscionable to me.”

McKeown’s ruling at least raised a legitimate point. “Our role is not to second-guess the decision to have a Cinco de Mayo celebration,” she wrote. That decision is indeed highly questionable.

Cinco de Mayo is not Mexican independence day, which falls on September 16. Cinco de Mayo recalls a Mexican military victory over French forces in the Battle of Puebla in 1862. Cinco de Mayo is barely celebrated in Mexico, if at all, so American schools have even less reason to hold an official event for it.

The five students Live Oak sent home were Clayton Howard, Daniel Galli, Austin Carvalho, Matthew Dariano and Dominic Maciel. The last four have as much claim to legitimate Latin extraction as anyone from Mexico. But in politically correct usage, “Latino” is form of identity theft and evasion of reality.

At Live Oak the breakdown was between those who thought it appropriate to officially highlight a Mexican non-holiday and those who did not. Even with the potential for strife, politically correct school officials continued to recognize Cinco de Mayo and punish those students who protested by wearing American flag imagery.

Maiman’s column charged that those who protested the school’s decision were guilty of “predictable jingoistic outrage.” So it was their problem, not anything to do with the First Amendment or free-speech rights. And Americans should be grateful to Mexico for defeating Napoleon III, who was out to supply the Confederacy. “Had the Mexican army not beaten the French, we might well be flying a very different flag today. Maybe we all ought to be celebrating Cinco de Mayo.”

In California many celebrate Cinco de Mayo by drinking lots of margaritas. But for this non-holiday bars are restaurants are better venues than American public schools. Live Oak made bad decisions, violated students’ rights, and a liberal court agreed. But the parents of Clayton Howard, Daniel Galli, Austin Carvalho, Matthew Dariano and Dominic Maciel are not giving up.

The 9th Circuit is the most liberal appeal court and frequently overturned. The parents will ask the 9th Circuit to reconsider the case with an 11-judge panel. If they have to, the parents will take their case all the way to the U.S. Supreme Court.